Tuesday, 22 August 2017

Imagine you’re a prominent UK
politician. You spend most of your time ranting on a radio station in the UK or
grovelling in the USA, occasionally showing up in France or Belgium to do your
actual full-time job. You’re now getting a divorce from your German wife. Which
court rules on matters concerning divorce and access to children – and which
law applies?

This dispute would be part of the
broader topic of cross-border civil litigation (or private international law),
which is the subject of the UK government’s latest position
paper on the Brexit talks. This paper gives some interesting hints about
how the UK seeks a close relationship with the EU after Brexit, while also
leaving some key issues rather vague.

First of all, it’s necessary to
point out that the paper doesn’t concern the future of dispute settlement
between the UK and the EU after Brexit. That’s the subject of another position
paper coming very soon. Rather it concerns how cross-border disputes between
private citizens or companies in the UK or EU will be dealt with after Brexit.

The paper usefully sets out which
EU laws in this area the UK has currently opted into, in particular: the
general rules on civil and commercial jurisdiction and conflict of laws; the
special rules on insolvency disputes and divorce/child access, maintenance, and
stalking orders; and related laws on simplified litigation, service of
documents, legal aid, evidence, legal aid, mediation and the ‘European Judicial
Network’ (a talking shop on the operation of these laws). (For an overview of
these issues in the Brexit context see the recent House
of Lords report).

Note that the UK has opted out of
some other EU laws in this area, in particular those concerning marital
property after divorce (and the property of civil partnerships which ended),
inheritance and conflict of divorce law. (For an overview of EU law in this
area as a whole, see the chapter in the second volume of my book on EU
Justice and Home Affairs Law).

The paper is mainly about the
future UK/EU relationship in this area, not withdrawal from the EU as such. But
there's a bit on that issue at the end, in response to the EU’s
position paper on the UK’s exit from the law in this area. Of course, the
UK government is correct to say that there is no need for any such transition
arrangements, to the extent that the UK still participates in the law in this
field after Brexit. But then, the EU won't discuss any aspects of its future
relationship with the UK until there is ‘sufficient progress’ on the key issues
of the UK’s so-called ‘divorce bill’ and the status of UK and EU citizens. (If
and when the EU and UK do agree on post-Brexit treaties in this area, note that
the EU usually votes by a qualified majority, except as regards family law,
where there is a veto. At least in key areas, the ECJ has ruled
that Member State ratification of such treaties is not necessary, since the EU
is exclusively competent).

There’s likely to be a need to
bridge the gap between Brexit Day and any future agreement between the UK and
the EU. This will probably take the form of some transitional extension of
current EU law, as part of the Brexit withdrawal treaty. But the position paper
doesn’t mention this issue at all – perhaps because the UK government has not
fully agreed on the details, and perhaps because the EU side insists that the
ECJ would still have jurisdiction during that period.

Future relationship

So what relationship does the UK government
want with the EU in future? The papers calls for a ‘new partnership…reflecting
our close existing relationship’, but does not detail which laws the UK wants
to continue participating in. One hopes
that the government will at least tell the EU which laws it wants to continue
applying.

There’s one thing the UK
government clearly doesn’t want
though: the continued ‘direct’ jurisdiction of the ECJ. (The notion of ‘direct’
jurisdiction isn’t explained explicitly, but we can deduce what the government will accept – see further below). The reader gets the distinct impression that
the UK is happy to continue participating in all the EU laws it has signed up
to already, except for removing the ECJ’s direct jurisdiction. It’s a bit like
tearing down and rebuilding a house, in order to change one brick.

The paper doesn’t address an
obvious question: what if an existing EU law is revised post Brexit? This point
isn't hypothetical. There's a proposal
to revise the current EU law on divorce and child access already. The UK has already
opted in to negotiations. But negotiations are slow, and might not conclude
before Brexit Day. Other laws in this field are negotiated over time. How to
address this topic?

International treaties

The paper seems keen to reassure
those who litigate in the UK (in particular, London) that the UK will still be ‘open
for business’ in this field after Brexit. To that end, the government confirms
that it will remain a party to a list of international treaties in the field (as
distinct from EU law), drawn up in
the auspices of an international body which focusses on cross-border civil
litigation – the Hague Conference on
Private International Law, including the important Hague Convention on child
abduction. For most of these treaties, this will be simple, because the UK is a
party to them in its own right, not as an EU Member State. For some others, the
UK participates only as an EU Member State, although it ought to be an easy
transition to participating in its own name: it can simply sign and ratify them
on Brexit Day.

However, the UK also wants to
stay part of the Lugano
Convention - which extends an earlier version of the main EU law on civil
and commercial jurisdiction to relations between the EU and EFTA
states (Norway, Iceland, and Switzerland – along with EU Member State Denmark
for convoluted reasons). This is another kettle of fish. According to that
Convention, to sign up in its own name, the UK either has to become an EFTA
state (which is a big issue in itself, since EFTA is a trade agreement) or
wangle a special invitation to sign up. And as the government’s position paper
acknowledges, it’s awkward that the Convention only relates to an earlier version
of that EU law.

Signing up to the Lugano
Convention also raises an issue about the ECJ. The Convention states that the
courts of non-EU states must ‘pay due account’ to ECJ judgments. So we can
deduce that the UK government does not believe that such an obligation violates
its ‘red line’ against ‘direct jurisdiction’ of the ECJ. It might have been
better to say this explicitly, and to propose it as a template for UK/EU
relations in this field, given that the UK apparently wants to keep
participation in other relevant EU laws as well. Indeed, it might also be a
template for other areas where the UK seeks to continue participation in EU
laws as a non-EU state. Perhaps the forthcoming paper on EU/UK dispute
settlement will say more on this.

Furthermore, the ECJ clause in
the Lugano Convention is similar (but not identical) to the ECJ clause in the EU
Withdrawal Bill as proposed by the government – which says that pre-Brexit ECJ
rulings stay binding (subject to the UK Supreme Court possibly overruling them,
or the government or parliament overruling them), while post-Brexit ECJ may be taken into account by courts in
the UK.

This may be enough of a
compromise to satisfy hardline Brexiteers; we’ll see. It ought to be acceptable to the EU side, given that it’s been
accepted in the context of relations with EFTA states for nearly thirty years
(the first version of the Lugano Convention dates back to 1988). But then, the
UK is asking for a closer relationship in this field of law than any other
non-EU country. In any event, the areas of law where the EU insists on an ECJ
role (citizens’ rights, the ‘divorce bill’, a transitional deal) will be more
difficult to agree. Time will tell if talks eventually founder – either on
those ECJ issues, or indeed on the bill itself.